JUDICIAL ILLOGIC

There's a fundamental contradiction at the center of Superior Court Judge
Robert Fitzgerald's rulings last Friday in the case of Marvin Chavez, a
patient who founded the Orange County Cannabis CoOp, which has tried to
create an above-board "white market" for patients whose doctors believe
they could benefit from medical marijuana.

On the one hand, Judge Fitzgerald upheld the prosecution's request to be
given access to the Co-Op member's medical records, in order to access
(presumably from a prosecutor's perspective) whether those who joined the
club actually had valid maladies. The most compelling prosecution argument
was that the police had entrapped Mr. Chavez with a phony doctor's note;
so.maybe there were other phony notes in the Co-Op files.

Should prosecutors be in the business of second-guessing licensed doctors
or penetrating the doctor-patient relationship to conduct a fishing
expedition whose main purpose seems to be intimidation? Judge Fitzgerald
didn't address those questions in his ruling.

But in making the ruling, he acknowledged, as prosecutors have certainly
acknowledged, that Mr. Chavez's Co-Op has records that include notes from
doctors. That means the organization is engaged in activities related to
Prop. 215, which allows patients with recommendations from doctors to grow
and possess marijuana.

Mr. Chavez may be trying to implement Prop. 215 imperfectly, foolishly or
even illegally. His organization might not be a bona fide "primary
caregiver" as the proposition defines the term. But there's no question his
activities are related to the initiative California voters approved in
1996. Certainly there's no evidence that he has made a lot of money from
his activities; if anything the evidence is to the contrary.

In this regard, Judge Fitzgerald's ruling that Mr. Chavez cannot use Prop.
215 in his defense at his upcoming trial for selling marijuana is logically
inexplicable.

The ruling can only be understood from a certain narrow legal perspective.
Orange County Deputy D.A. Cecil Armbrust has argued that since Prop. 215
did not specifically authorize sales then all sales are still illegal, even
if cloaked as "donations." (The proposition, however, did speak of the
government implementing a system for "safe and affordable" distribution,
which seems to imply money might change hands.) So, according to this
reasoning, if the case involves selling marijuana, Prop. 215 doesn't come
into play and shouldn't even be mentioned.

But that's a legal reading that ignores the reality. It is widely known
that Marvin Chavez has been trying to set up an organization to provide
marijuana to medical patients, who since November 1996 have had a legal
right to it. Granted, perhaps he hasn't done it properly. Why couldn't the
authorities work with him to operate under proper guidelines - unless they
anticipate the county government setting up a program to grow marijuana and
distribute it to bona fide patients?

The alternative is to wink and send patients who have a legal right to
possess marijuana to the streets to find it, which only strengthens the
black market. Is that what prosecutors and law enforcement officials want
to do?

To treat Marvin Chavez as "just a marijuana dealer" and to forbid any
mention of Prop. 215 at his trial is to perpetrate a fiction in the
courtroom and deny the jury relevant information. The only explanation that
makes sense is that certain people in the law-enforcement and judicial
community are determined not to find a way to implement the law the people
voted for, but to prove that it can't be implemented and the people were
foolish.

Mr. Chavez's attorneys say Judge Fitzgerald's decisions will be appealed,
and they expect to prevail on appeal. Judging from appeals court rulings to
date on medical marijuana-related cases, they will probably be successful.
But that outcome won't excuse Judge Fitzgerald's illogical rulings.